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
#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
- 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
#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.
- Salome Mueni Mbai v James Ondieki Maua & 1 other[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.