Commercial Law
4 August 2026
Drafting a Defence: Admissions, Denials and Non-Admissions
By Christopher N. Rosana
A Kenyan civil defence should answer the substance of the plaint, not merely repeat the word “denied”. Admit facts that are true and useful to narrow the dispute; deny material allegations that are disputed; use non-admission only where the fact is genuinely outside the defendant’s knowledge; and plead affirmative matters that defeat or limit the claim. The rules on traverse in Order 2 of the Civil Procedure Rules are designed to prevent evasive denials. A defence that leaves the claimant and court unsure what is actually contested can create admissions, weaken credibility and obscure a viable legal response.
Read the plaint as propositions that require an answer
Before drafting, reduce the plaint to its material propositions. Identify the parties, transaction, claimed duty or obligation, alleged breach, loss, notices, conditions precedent and prayers. Then distinguish the propositions that are plainly true, plainly untrue, not known to the defendant, legally immaterial or capable of being defeated by additional facts. This exercise prevents a general denial from becoming a substitute for analysis.
Not every sentence deserves a separate response. A defence should address material facts, not every rhetorical assertion or legal conclusion. But it should answer the real allegation. If the plaint says that the defendant received a payment on a specific date and failed to deliver goods, a response that merely denies “the allegations in paragraph 7” may be unhelpful if the defendant admits receipt but disputes the terms, delivery date or responsibility. The response should make the actual point of disagreement visible.
Build the defence against the elements of the claim. A contract case may require an answer on formation, terms, performance, breach, notice, causation and loss. A negligence claim may require an answer on duty, breach, causation, damage and contributory conduct. The structure will vary, but a defence becomes clearer when it mirrors the legal route the claimant must establish rather than following the order in which the client happened to tell the story.
Make admissions deliberately and use them to narrow the dispute
An admission is not necessarily a concession of liability. It may acknowledge a party’s identity, the existence of an agreement, receipt of correspondence, a payment, a meeting or an uncontested date while preserving the real dispute. Proper admissions improve credibility and reduce the cost of proving matters that are not genuinely in issue. They also allow the court to focus on whether the admitted facts have the legal consequence asserted by the claimant.
Every admission should be read with its context. Admitting that a contract exists does not automatically admit the term alleged, a breach, the claimant’s performance or the amount claimed. Admitting receipt of money does not necessarily admit that it was due, that it was paid under the asserted agreement or that it was retained unlawfully. A well-drafted paragraph states the limited fact admitted and then identifies the material proposition that remains in dispute.
Do not make an admission simply to sound cooperative. Check the primary documents, the client’s authority and the consequences for any related claim, counterclaim, insurance position or regulatory issue. If a fact is still being investigated, an unqualified admission may be difficult to withdraw. The correct course may be a carefully framed non-admission or a request for clarification, but that choice should be based on the record rather than reflex.
Deny the substance of a disputed allegation
The Civil Procedure Rules require a traverse that is specific and not evasive. A denial should therefore meet the allegation at its material point. If the claim is that the defendant failed to deliver goods by an agreed date, the defence should say whether there was such a date, whether delivery occurred, whether the claimant prevented performance, whether time was extended, or whether another issue is relied upon. Denying only a peripheral detail can leave the central allegation unanswered.
Beware the negative pregnant: a denial whose wording appears to deny one aspect of an allegation while implying the rest. For example, “the defendant denies unlawfully retaining the funds” may leave open whether the defendant retained them at all. If retention is disputed, say so. If retention is admitted but said to be contractually authorised, admit the fact and plead the authority. Clear drafting avoids an argument later that the defence never joined issue on the real allegation.
A denial should not become an argument. “The allegation is baseless, misconceived and frivolous” says little unless the defence states the factual response. Nor should it silently introduce a new version of events. Where the defendant relies on a positive explanation—payment, performance, release, illegality, mistake, limitation, privilege, set-off or another avoidance—that matter must be pleaded clearly as part of the defence rather than hidden inside a denial.
Use non-admission with factual discipline
Non-admission is appropriate where the defendant cannot fairly admit or deny a fact because it lies outside the defendant’s knowledge and the claimant must prove it. It is commonly used for matters involving a claimant’s internal loss, an alleged conversation to which the defendant was not party, a third party’s conduct or an asserted special damage not supported by particulars. It should not be used to avoid a fact that the defendant can readily verify from its own records.
The wording should make the position intelligible. A bare statement that a paragraph is “not admitted” may be sufficient in some contexts, but it is often better to say that the defendant lacks knowledge of the alleged fact and puts the claimant to strict proof. Where the defendant knows part of the allegation, admit that part and identify what remains unproven. This prevents the defence from appearing evasive while preserving the claimant’s burden of proof.
Review non-admissions after disclosure and further instructions. A response that was proper at filing may need adjustment if documents establish the fact. The objective is not to preserve every possible technical point; it is to maintain an accurate and coherent case. Courts are less likely to be assisted by a defence that denies obvious matters than by one that identifies the genuine evidential dispute.
Plead affirmative defences and complete the filing review
An affirmative defence accepts, or proceeds on the assumption of, some aspect of the claimant’s narrative but relies on additional facts that defeat its legal effect. Payment, release, accord and satisfaction, limitation, illegality, estoppel, waiver, contributory negligence, self-defence and contractual exclusion are examples that may require their own factual foundation. Pleading the label without the supporting facts is rarely enough. The claimant should know what additional case must be answered.
Keep affirmative matters separate from the basic traverse. A paragraph may first admit that a sum was invoiced, then plead that it was paid on a named date; it may admit a contract but plead a valid termination notice; or it may deny breach and, in the alternative, plead a limitation of liability. Alternatives should be explicit and internally coherent. If the defendant has an independent claim, consider whether a set-off or counterclaim—not an overextended defence—is the appropriate procedural vehicle.
It is useful to prepare a response table before converting the analysis into formal pleading. Put each material plaint paragraph in one column, the supporting record in another, and the intended response in a third: admission, denial, non-admission or affirmative defence. A fourth column can identify the witness, document or further instruction needed. The table is an internal working tool, not part of the filed defence, but it exposes gaps before the pleading commits the client to a position.
Pay particular attention to allegations that combine several facts in one paragraph. A claimant may assert that the defendant received a notice, understood it, failed to comply and thereby caused a stated loss. The defendant may admit receipt, deny the asserted meaning, plead compliance and put causation or quantum to proof. Splitting the response with care is better than a blanket denial that obscures facts which are not genuinely controversial.
The same review should identify documents that require preservation and people who can confirm the relevant events. A defence is not evidence, but it should be drafted with the eventual proof in mind. If the only source for a proposed denial is uncertain memory, the drafter should seek records before filing where time permits. A precise response built on checked instructions is more durable than a broad denial that must later be abandoned.
Before filing, check the pleading against the plaint, instructions and primary records. Confirm the names, capacities, dates, sums, notices, contractual clauses and relief. Ensure that each material allegation has a purposeful response, that affirmative matters are particularised, and that the final prayer matches the position taken. The Court of Appeal has stressed that parties are bound by their pleadings; a careful defence preserves the issues the defendant actually intends to contest. This is general information, not advice on a particular dispute.
Where the consequences are material, obtain a final client confirmation of the pleaded position before signature and filing.
Part 6 of 24 in this series.