Tunduru South election petition to proceed as court dismisses preliminary objection

Delivering the ruling on December 29, 2025, Judge James Karayemaha held that the petitioners, who are beneficiaries of legal aid, were not required to deposit security for costs or to file an application seeking exemption from that requirement.

The petition arises from the General Election held on October 29, 2025, in which voters elected the President, Members of Parliament and councillors.

The Independent National Electoral Commission (INEC) declared Mr Chilombe, who contested on the CCM ticket, the winner of the Tunduru South parliamentary seat.

Before the case could proceed to a hearing on its merits, the Returning Officer and the AG raised a preliminary objection, arguing that the petition was incompetent for failure by the petitioners to comply with statutory requirements on security for costs.

They argued that the petitioners neither deposited security for costs nor filed an application seeking exemption within 14 days of lodging the petition, contrary to Section 140(3) of the Presidential, Parliamentary and Councillors’ Elections Act, 2025, read together with Rule 11(1) of the Parliamentary Election Petition Rules.

At the hearing of the objection, the first and third respondents were represented by Advocate Edwin Webiro, while the second respondent was represented by Advocate Gilbert Godfrey. The petitioners were represented by Advocate John Seka.

Mr Webiro submitted that the law requires a petitioner to deposit security for costs of not less than Sh5 million and that, where a petitioner is unable to do so, an application for reduction or exemption must be filed.

He argued that the court is required, under Section 140(6) of the Elections Act, to hear the respondents before granting any exemption, adding that an election petition cannot be heard until security for costs has been deposited.

Mr Webiro further told the court that although the petitioners had a certificate from the Tanganyika Law Society (TLS) indicating they were legally aided, they were still required to file a formal application for security for costs, describing the requirement as mandatory.

Advocate Godfrey supported the submissions, urging the court to uphold the objection in the interests of justice.

In response, Mr Seka argued that the petitioners were lawfully granted legal aid by the TLS and were therefore exempt from depositing security for costs.

He cited Section 32 of the Legal Aid Act, Cap. 21, and Rule 11(4) of the Parliamentary Election Petition Rules, both of which provide that a person receiving legal aid is not required to furnish security for costs in any proceedings.

Mr Seka further argued that the Legal Aid Act takes precedence over the Elections Act on matters relating to security for costs and that the petitioners enjoyed an automatic statutory right not to pay such security.

He maintained that the petitioners were under no legal obligation to file an application for exemption or to subject their legal aid status to scrutiny by the court, noting that there was a valid TLS certificate on record which had not been challenged in accordance with the law.

In his ruling, Judge Karayemaha said the court was satisfied that although the petitioners had neither deposited security for costs nor filed an application to that effect, they were validly receiving legal aid.

“The law is clear that a person who has been granted legal aid is not required to deposit security for costs. Such a petitioner is not subject to Sections 140(3) and (5) of the Elections Act,” the judge said.

He rejected the respondents’ argument that the petitioners were still required to comply with the Elections Act provisions, stating that neither the Legal Aid Act nor the Election Petition Rules impose a duty on the court to inquire into the process through which legal aid was granted.

The judge further noted that the court has no legal mandate to determine whether a petitioner qualifies for legal aid, describing any gaps in the Legal Aid Act and its regulations as matters for the legislature.

Having found that the preliminary objection was without merit, Judge Karayemaha dismissed it and ordered that each party bear its own costs, allowing the election petition to proceed to a full hearing.