Commercial Law
4 August 2026
How to Write Persuasive Legal Submissions: Structure, Authorities and Tone
By Christopher N. Rosana
Persuasive legal submissions help the court decide the issue presented by the pleadings and evidence. Start with the order sought, frame the questions that must be answered to grant or refuse it, identify the controlling authority, apply that law to the record and state the consequence. Length, forceful adjectives and long quotations do not substitute for analysis. A submission is strongest when a judge can see the route from issue to authority to proved fact to remedy without having to reconstruct the advocate’s argument.
Give the court a usable map of the dispute
Open with a short statement of what the case is about, the decision required and the orders sought. Then state the issues in the order the court must resolve them. An issue should be a question capable of an answer, not a slogan such as “whether justice should be done”. For example: whether the notice satisfied the contractual service clause; whether breach was proved; and whether the claimed remedy follows.
Build the issue list from the pleadings, evidence and applicable procedure. Do not use submissions to introduce a claim, defence or factual case that was not properly pleaded. The Court of Appeal has repeatedly stressed that parties are bound by their pleadings. That principle protects fair notice and gives the court a defined controversy to decide.
At the beginning, tell the court where the decisive materials can be found: the relevant paragraph, affidavit, exhibit, agreed fact, testimony or statutory provision. This is not mere formatting. It demonstrates that the argument is anchored in the record rather than assertion.
Select authorities by force and relevance
Start with the Constitution, statute, rules or contractual provision that governs the point. Then use binding authority from the appropriate court where it exists. Persuasive decisions, textbooks and foreign material may assist, but they should not displace a controlling Kenyan source. Check the current status, ratio and factual setting of every authority before citing it.
Use quotations sparingly. Quote the operative wording where precision matters, then explain its application. A page of extracted judgments is not analysis. It may also hide the qualification or context that limits the proposition. If an adverse authority cannot honestly be distinguished, confront it and explain its consequence. Candour is more persuasive than hoping the court will not notice the problem.
Organise authorities under the issue they decide. A list of cases without a proposition forces the reader to guess why each citation matters. The submission should say what rule the authority establishes, why it applies or differs, and what result it supports on the actual record.
Apply law to the proved or assumed facts
Application is the centre of written advocacy. Take each element of the legal test and connect it to the relevant evidence or admitted fact. If the court must decide whether notice was served, identify the rule, the required method, the document relied on, the evidence of delivery and the opposing position. Then state the conclusion that follows. Avoid jumping from a legal proposition to a result without showing the factual bridge.
Distinguish facts from inferences and inferences from legal conclusions. “The email was sent” may be a fact; “it was received” may be an inference; “service was valid” is a legal conclusion. The submission should make clear which step is contested and why the available record supports the requested finding. This is particularly important where the burden of proof, credibility or an evidential presumption matters.
Deal with the strongest contrary point, not an easier version of it. Acknowledge a document or authority that appears adverse, then show whether it is distinguishable, outweighed, answered by another fact or legally immaterial. A submission that ignores the obvious weakness leaves the court to discover it without assistance.
Maintain a firm and professional tone
Firm advocacy addresses the argument rather than the person. Describe an assertion as unsupported by the record, inconsistent with a document or contrary to authority; avoid calling counsel dishonest, ridiculous or incompetent. Serious allegations of abuse, fraud or misconduct require a proper factual and procedural foundation. Personal attacks rarely improve a legal analysis and may obscure the relief the client needs.
Respectful language does not require timidity. Where a decision, interpretation or factual finding is wrong, say why with precision. Identify the provision overlooked, the controlling authority, the missing element or the evidential gap. The court can then evaluate the point on its merits. Precision is more effective than indignation.
Follow the applicable practice directions, page limits, typography requirements, bundles and citation conventions. Presentation cannot rescue a weak case, but poor presentation makes a sound case harder to follow. Check the directions for the particular court and judge before filing.
Finish with precise orders and a verification pass
End each major issue with the order it supports. The final prayer should state exactly what the court is asked to do: dismiss the claim, allow the application, enter judgment for a stated sum, declare a right, set aside a decision, grant an injunction or make another defined order. Ensure that the requested order is legally available and matches the pleadings and evidence.
Remedy analysis deserves more than a standard closing phrase. A party may prove a breach but fail to establish the measure of loss, causation, mitigation, the contractual basis for interest or the conditions for equitable relief. Identify the test for each remedy and the evidence that satisfies it. If the court has discretion, explain the factors that guide it and the practical effect of the order proposed. This gives the court a route to a legally available result rather than an invitation to choose among vague prayers.
Use the record efficiently. Take the court to the clause, admission or evidence that matters, then explain its legal significance. A large bundle is not an argument. Where a document contains an adverse sentence, acknowledge it, place it in its full context and explain why the chronology, surrounding language or governing rule leads elsewhere. If the point is genuinely damaging, candidly confine its effect rather than ignoring it.
Separate threshold questions from merits questions. Jurisdiction, limitation, standing, service, statutory preconditions and the competence of an application may need to be decided before liability or quantum. Explain why a threshold issue is dispositive if that is the case. If resolving it requires disputed evidence, do not present it as an automatic shortcut; show the court the appropriate procedural route.
Reply submissions should reduce the remaining disagreement. State the opponent’s strongest proposition fairly, identify the flaw in its factual foundation, legal authority or logical step, and state the conclusion that follows. Do not merely repeat the opening submission in stronger language. A useful reply helps the court distinguish an issue that has been answered from one that truly requires a finding.
Authorities require a final currency check. Confirm the neutral citation, court, date, ratio, subsequent appellate treatment and the statutory text in force at the material time. A proposition may be correct in the abstract yet inapplicable because the legislation has changed or the case concerned a different procedural setting. Record references deserve the same care: verify exhibit labels, transcript pages, affidavit paragraphs, admitted facts and calculations.
Perform a final accuracy review. Verify citations, quotations, record references, dates, amounts, exhibit labels and paragraph numbers. Confirm that every factual assertion has a source and every legal proposition has authority. Remove repetition and rhetoric that does not move the decision forward. Then read the document as the judge will: can the relief, issue, rule, application and conclusion be found quickly? Descriptive headings, accurate cross-references and short paragraphs make a difficult decision manageable.
On appeal, identify the precise error said to justify intervention: a misdirection on law, unsupported finding, wrong exercise of discretion or procedural unfairness. On an interlocutory application, apply the threshold for that stage rather than the final-trial test. Where facts are contested, state the burden, the missing evidence and why the existing material does not meet the required standard.
Use authorities and evidence in the same disciplined way. A proposition should be traceable to its source, and the source should be connected to the order sought. The court is not assisted by a citation that has no stated consequence or by a factual assertion that has no reference to the record.
Every paragraph should identify a proposition, support it from law or record, and explain the result. If it does none of those things, remove it. This final discipline makes submissions shorter for a reason: the court receives the analysis necessary to decide, without avoidable obstacles to using it.
When several issues overlap, state their sequence: interpretation may determine breach, and breach may determine remedy. Showing that order helps the court avoid deciding unnecessary questions and explains the architecture of the submissions.
Keep that sequence visible in the final prayer and in the short conclusion under each issue. It tells the court what must be decided first, what follows from that finding, and why the proposed order is legally available on the record.
Part 10 of 24 in this series.