Arusha. The High Court of Zanzibar has dismissed an appeal challenging the striking out of eight election petitions after finding that the supporting affidavits contained fatal flaws that could not be remedied.
The decision was delivered on Monday, August 31, 2026, by a three-Judge panel comprising Fatma Hamid Mahmoud, Said Hassan Said and Salum Hassan Bakari, in Civil Appeal Number 1 of 2026.
The appeal was lodged by Omar Said Shaaban, Ally Abdullah Ally, Makkiye Mwadini Mussa, Ziada Mwadini Mussa, Haji Haji Silima, Yussuf Mussa Haji, Juma Abdul Hamid and Abdalla Jihad Hassan against returning officers of Pangawe, Malindi, Kiembe Samaki, Makunduchi, Chaani, Mkwajuni, Chumbuni and Mwanakwerekwe constituencies, alongside the Attorney General of Zanzibar.
The appellants were challenging Justice Mohamed Shein’s March 5, 2026 decision to strike out the eight petitions after finding that their supporting affidavits contained fatal defects.
Judges’ decision
In their decision, the Judges said the main reason for dismissing the appeal was their finding that the affidavits supporting the petitions contained defects that could not be rectified.
Justice Bakari said that after reviewing the affidavits and the initial decision of the single Judge, they were satisfied that the documents contained legal arguments, matters that ought not to appear in an affidavit, and other flaws that rendered them legally invalid.
He said Justice Shein had thoroughly analysed the affidavits and provided sufficient reasons before deciding to strike out the petitions.
The Judges observed that the argument concerning Section 137 of the Zanzibar Elections Act was not the basis for striking out the petitions, as the Judge’s remarks regarding the provision were obiter dicta.
“The Judge on pages 17, 18 and 19 of his decision, gave lengthy views regarding the applicability of section 137, however, the Judge did not decide that petition based on that section 137,” said Justice Bakari.
The Judges added that the statement was not the basis of the decision; hence, they decided not to deliberate on that ground and instead focused on defects in the supporting affidavits.
“After carefully considering the Judge’s decision, especially pages 20 and 21 and after considering submissions from advocates of both sides, we are satisfied that affidavits supporting the petitions had defects that could not be rectified,” he said.
On that basis, the Judges concluded that the petitions could not proceed without valid affidavits, upholding Justice Shein’s decision to strike them out and dismissing the appeal with costs.
“We are satisfied that the Judge properly analysed and examined before deciding election petitions after establishing fatal defects in supporting affidavits. For those reasons above, it is the considered view of this panel that the Judge was correct to strike out those petitions; therefore the appeal is dismissed with costs,” he concluded.
Grounds of appeal
The appellants had five grounds of appeal, including that the Judge erred in law by ruling that Section 137 of the Zanzibar Elections Act provides a mandatory procedure that must be followed before filing election petitions.
Another was that the Judge failed to distinguish legal arguments from factual statements contained in the supporting affidavits and did not properly analyse challenged paragraphs, which they claimed resulted in the petitions being struck out without sufficient basis.
They also argued that the Judge struck out the affidavits for allegedly containing irrelevant matters without explaining which parts were flawed and why.
They said he erred in striking out the petitions based on preliminary objections instead of allowing them to proceed to a hearing on their merits.
Background of appeal
The appeal arose from eight election petitions lodged by the appellants in the High Court of Zanzibar challenging the conduct and outcomes of elections in various constituencies.
Before the petitions were heard, respondents raised preliminary objections, claiming, among other things, that the petitions had not followed legal procedures, were not in the form and format prescribed by law and were accompanied by defective affidavits.
The Judge hearing the matters, after considering the objections, found that the supporting affidavits for all eight petitions contained fatal flaws that could not be rectified, including legal arguments and unnecessary matters, and struck out all petitions without making an order on costs.
The court therefore found no basis to interfere with the single Judge’s decision, noting that a petition supported by an invalid affidavit could not proceed to a full hearing on its merits.
