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Court of AppealAllowedCivil Application (as stated in judgment; earlier application was Civil Application No. 213 of 1998)· [1998] KECA 226 (KLR)

TONONOKA STEELS LIMITED VS EASTERN & SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK (THE PTA BANK) [1998] KECA 226 (KLR)

Court of Appeal of Kenya
16 December 1998
1,337 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a single-judge application under rule 4 of the Court of Appeal Rules for extension of time to lodge a record of appeal against a ruling of Ole Keiwua, J. delivered on May 8, 1998 refusing an injunction. The applicant had earlier filed Civil Application No. 213 of 1998 under a mistaken belief that time for appealing had lapsed from the date of the ruling; that application was dismissed on November 4, 1998 as premature, since under the proviso to rule 81 time did not begin to run until August 28, 1998 and the appeal period expired only on October 27, 1998. The present application, filed on November 20, 1998, sought to regularise an appeal lodged on November 19, 1998, twenty-two days late. The respondent opposed, arguing there was no bona fide mistake, no explanation for the delay, and that counsel had been untruthful. Lakha, J.A. held that the failure to comply with the Rules was a clear mistake by the applicant's advocates, that mistakes normally arise through negligence, and that the respondent's submission that negligence disqualifies the discretion was too wide. Following Belinda Murai v Amos Wainaina and Grindlays Bank v George Barbour, and applying Gatti v Shoesmith on short delays, the court found the delay short and not inordinate, rejected the untruthfulness allegation, and allowed the application as prayed, with costs of the application to abide the appeal. The decision articulates the guiding principle that, absent fraud, intention to overreach, inordinate delay or other disentitling circumstances, the Court should prefer to have cases determined on their merits.

Key legal issues

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01

Whether an advocate's mistake, even if arising from negligence, bars extension of time

Holding

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.

Reasoning

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.

p. 2
02

Whether the delay of twenty-two days was inordinate

Holding

The delay was short and not inordinate; different considerations might apply to a long delay.

Reasoning

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.

p. 3
03

Whether the applicant's counsel was untruthful

Holding

The court was not persuaded that counsel was less than truthful; his omission was itself a mistake.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Extension of time granted for lodging the record of appeal to 19th November, 1998
  2. 2.Costs of the application to abide the appeal
On appeal from
High Court of Kenya (superior court)
null
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.