Subdivision C of Order 8 of the National Court Rules 1983 is headed Form and Manner of Pleading. It applies to every pleading — statement of claim, defence, reply and cross-claim alike.
Rules 7, 8 and 9
Rule 7 — where a party alleges or deals with several matters, (a) the pleading shall be divided into paragraphs; (b) each matter shall, so far as convenient, be put in a separate paragraph; and (c) the paragraphs shall be numbered consecutively.
Rule 8(1) — a pleading shall contain only a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.
Rule 9 — a pleading shall be as brief as the nature of the case admits.
Material fact: “On 3 April 2025 the defendant agreed in writing to supply 200 bags of cement for K14,000.”
Evidence: “Mr Kanaparo will say he was present when the agreement was signed and saw the defendant sign it.”
The first belongs in the pleading; the second in an affidavit or witness statement. Pleading the evidence bloats the document and is one of the ways a pleading becomes liable to be struck out. Brevity is enforced financially too: Order 4 Rule 17 makes the costs of an unnecessarily prolix document borne by the party using it.
Rules 18, 19 and 20
Rule 18 — Departure. A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with his own previous pleading.
Rule 19 — Alternatives. Rule 18 does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.
Rule 20 — Points of law. A party may by his pleadings raise any point of law.
Departure is contradicting your own earlier pleading — asserting a written contract in the statement of claim, then an oral one in the reply. That is prohibited; the answer is to amend.
Alternatives are inconsistent cases advanced at the same time, expressly in the alternative: “there was a contract on the terms pleaded; alternatively, if there was none, the defendant is liable in restitution”. Read with Order 5 Rule 2, which contemplates relief that is joint, several or alternative, that is a proper way to plead — but label it clearly, or it reads as a departure.
Rules 14 to 16
In a defence or subsequent pleading, the party pleading shall plead specifically any matter — for example, performance, release, any statute of limitation, fraud, or any fact showing illegality —
(a) which he alleges makes any claim, defence or other case of the opposite party not maintainable; or
(b) which, if not pleaded specifically, may take the opposite party by surprise; or
(c) which raises matters of fact not arising out of the preceding pleadings.
Rule 20A — pleading the underlying law
Subdivision C1 gives effect to the Underlying Law Act 2000, and it also applies to proceedings commenced by originating summons. In the rule, “Constitutional rights” means the National Goals and Directive Principles and Basic Social Obligations established in the Constitution and the basic rights guaranteed by Division III.3.
Rule 20A(2) — every pleading which does not state whether or not a rule of customary law is applicable shall be deemed to plead that no rule of customary law is applicable.
| You contend | You must plead |
|---|---|
| A rule of customary law applies — r 20A(4)(a) | The particulars of the rule, its source, and the factual circumstances in which it applies; and the nature and source of the evidence or information you will adduce. You are deemed to plead that the rule is not inconsistent with written law and is consistent with Constitutional rights |
| A rule of customary law exists but should not apply — r 20A(3) | The particulars of the rule; whether it is inconsistent with a written law; whether its application would be contrary to Constitutional rights; and the facts and circumstances relied on |
| A rule of common law not part of the underlying law — r 20A(4)(b) | Whether customary law applies and why it should not; the rule, its source including case citations, and the circumstances; and the evidence you will adduce |
| A new rule of the underlying law — r 20A(4)(c) | Particulars of everything the Court should have regard to — Constitutional rights, analogies from written and customary law, and the laws of a foreign country relevant to the subject matter |
| A newly formulated rule — r 20A(4)(d) | The formulated rule sought; the facts showing an existing rule is no longer applicable to the circumstances of the country; and the matters listed |
Say nothing about customary law, and you are deemed to have pleaded that none applies. Where custom is part of your case — and in land, family and compensation disputes it very often is — it must be pleaded affirmatively, with particulars and with the source of the evidence you will call.
The Underlying Law Act 2000 is not available on PacLII at the time of writing. Rule 20A itself, in the National Court Rules, sets out the pleading requirements in the detail reproduced above.
Rules 11, 12 and 17
Rule 11 — you need not plead a fact presumed by law to be true, or one where the burden of disproving it lies on the other party, except as necessary to meet a specific denial.
Rule 12 — a statement that a condition precedent has been performed shall be implied.
Rule 17 — you may plead any matter notwithstanding that it has arisen after the commencement of the proceedings.
On what is prohibited, see what must not go in a pleading; on the consequences of silence, see failing to plead to an allegation.
Sources
- National Court Rules 1983 — O 4 r 17; O 5 r 2; O 8 rr 7–20A
- Constitution — National Goals and Directive Principles; Div III.3 (Basic Rights)
- Underlying Law Act 2000 — not available on PacLII
- Frauds and Limitations Act 1988
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.