TONONOKA STEELS LIMITED VS EASTERN & SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK (THE PTA BANK) [1998] KECA 226 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal, holding that a lawyer's mistake—even negligence—doesn't automatically block an extension of time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the failure to file the appeal within time was a bona fide mistake by the applicant's advocates
- 2.Whether the delay of twenty-two days in lodging the record of appeal was inordinate
- 3.Whether the applicant's counsel was untruthful in describing the dismissal of the earlier application
- 4.Whether the Court should exercise its discretion under rule 4 to extend time for lodging the record of appeal
Key legal issues
#Whether an advocate's mistake, even if arising from negligence, bars extension of time
The failure to comply with the Rules was a clear mistake by the applicant's advocates; counsel's error is not necessarily a bar to extension of time.
The court found the mistaken belief that time had lapsed on May 8, 1998 was bona fide, since under the proviso to rule 81 time did not start running until August 28, 1998. Relying on Belinda Murai and Grindlays Bank, the court held that mistakes normally arise through negligence and that the respondent's proposed rule excluding negligent mistakes was too wide.
Whether the delay of twenty-two days was inordinate
The delay was short and not inordinate; different considerations might apply to a long delay.
The litigation was of recent origin and the appeal was lodged only twenty-two days after expiry of the period. The court adopted Lord Greene MR's observation in Gatti v Shoesmith that where the period involved is a matter of a few days and the intention to appeal was communicated within time, a misunderstanding does not disentitle the applicant.
Whether the applicant's counsel was untruthful
The court was not persuaded that counsel was less than truthful; his omission was itself a mistake.
The respondent alleged counsel was untruthful in saying the earlier application was dismissed only for prematurity. The court accepted that counsel's failure to refer to the absence of an explanation, which the court had noted in its earlier ruling, was itself a mistake rather than dishonesty.
Legal principles established
#- Rule 4 confers the widest measure of discretion and makes no distinction between classes of cases; counsel's mistake is not necessarily a bar to extension of time.
- Unless there is fraud, intention to overreach, inordinate delay or other disentitling circumstances, the Court should prefer to have a case determined on its merits.
- The proposition that an advocate's carelessness or negligence always disqualifies the exercise of the discretion is too wide; mistakes normally arise through negligence.
Court orders
#- 1.Extension of time granted for lodging the record of appeal to 19th November, 1998
- 2.Costs of the application to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya (superior court)
- null
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Broadly speaking, my view of the matter is that unless there is fraud, intention to overreach, inordinate delay or such other circumstances disentitling a party to the exercise of the Court's discretion, the Court should, insofar as it may be reasonable, prefer, in the wider interests of justice, to have a case determined on its merits.
A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.
For all the reasons above stated, I allow the application as prayed with costs of this application to abide the appeal.
I have come to the clear conclusion that this case falls under the heading of those in which counsel's error is not necessarily a bar to his obtaining an extension of time.
Issues in the judgment
#The case number of the present application is not stated in the judgment; only the earlier application (Civil Application No. 213 of 1998) and the stay application (NAI. 119) are identified.
The judgment is signed by a single Judge of Appeal, suggesting a single-judge determination under rule 4 rather than a full bench.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbai v Maua & another (Civil Application E504 of 2025) [2026] KECA 394 (KLR)[2026] KECA 394 (KLR)27 Feb 2026followed
Cite this brief
#Cite this brief
Caselaw, "TONONOKA STEELS LIMITED VS EASTERN & SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK (THE PTA BANK) [1998] KECA 226 (KLR)", Case Analysis (1998). Civil Application (as stated in judgment; earlier application was Civil Application No. 213 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/226/eng@1998-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.