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his intention of taking it up. In response, he avers that the Respondent’s director asked him to consider staying with the Respondent on the understanding that the Respondent was going to match the terms which he had been offered by SAP Africa. 5. The Claimant states that the Respondent offered to: promote him to a higher position of grade 11; increase his salary to that grade; give him restricted stock units; and pay tuition fees for his master’s degree program at Strathmore University. 6. The Claimant contends that at the time the Respondent made this offer, he had already embarked on his studies at the aforesaid university. Consequently, he avers that the Respondent agreed to reimburse him the fees which he had already paid to the institution. 7. The Claimant contends that as a result of the Respondent’s promise to better the terms of engagement between the parties, he did not take up the job offer by SAP Africa. It is his case that he opted to continue in the Respondent’s service. 8. The Claimant avers that to his surprise, the Respondent failed to live up to the terms of the promise it had made to him. He avers that the Respondent’s actions caused him frustration prompting him to resign from employment in September 2015. ELRC CAUSE NO. E1382 OF 2018 2

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9. The Claimant avers that as he was serving the notice period for the resignation, the Respondent terminated his services. It is his case that the termination took effect immediately from 18th September 2015. 10. The Claimant contends that before his contract was terminated, he had earned commission on account of the work he had accomplished. However, he contends that the Respondent failed to properly compute and pay him the accrued commission fees. It is his case that the failure to appropriately compute the commission fees due to him arose, inter alia, because of the failure by the Respondent to give him goal sheets for the financial year 2015-2016 which were critical in working out commission payments. 11. The Claimant contends that as a result of the aforesaid matters, he suffered loss and damage particularized as follows:a) Underpayment of commission in the sum of Ksh. 1,000,000.00. b) Loss of earnings of Ksh. 6,144,455.02 being the difference between the salary he was earning from the Respondent and what he would have earned had he taken up the job offer by SAP Africa. c) Unreimbursed university fees of Ksh. 700,000.00. d) General damages of Ksh. 5,000,000.00. 12. The Claimant thus claims for the aforesaid amounts. In addition, he prays for interest and costs of the suit. ELRC CAUSE NO. E1382 OF 2018 3

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13. During the trial, the Claimant largely reiterated what has been set out above. He stated that although the Respondent promised to better his terms to match those which he had been offered by SAP Africa, it (the Respondent) reneged on the offer. He further stated that the Respondent wrongly worked out his commission entitlement for the 2015-2016 financial year because of absence of a goal sheet for the period. 14. The Claimant stated that he closed two deals for the Ministry of ICT, Tanzania and the County Government of Nairobi during the aforesaid period. He stated that the deals were worth USD 300 million. 15. When asked if he had proof of the deals, he stated that the records were with the Respondent. He averred that he did not manage to retrieve the data on the deals from the Respondent because the Respondent blocked his access to the records after it terminated his services. 16. The Respondent has opposed the claim. It denies that it offered the Claimant better terms than those he was serving under in a bid to match what he had been offered by SAP Africa. It further denies that it offered to pay and or reimburse his tuition fees as an inducement to retain his services as he claims. 17. The Respondent avers that the Claimant was paid all commission fees which had accrued to him before his contract was terminated. It avers that commission is paid on ELRC CAUSE NO. E1382 OF 2018 4

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business which has been booked and shipped and that in the case of an employee whose contract is terminated, these conditions have to be satisfied within thirty days of the termination for the commission to accrue. As such, it denies that the Claimant was entitled to claim commission based on business bookings alone. 18. The Respondent also contends that Claimant’s commission for the year before he exited employment could not be computed using the formula he proposes because he had not been issued with a goal sheet for that period. As such, it contends that the commission was pro-rated using an alternative formula. 19. The Respondent avers that the Claimant’s services were terminated because he took up employment with a competitor. It contends that the Claimant’s action was irregular thus necessitating his release from service. 20. The Respondent avers that it does not owe the Claimant any benefits. It contends that all benefits due to him were settled in line with the applicable policies. Analysis 21. A perusal of the amended Memorandum of Claim reveals that the dispute between the parties is not about the lawfulness of the Respondent’s decision to terminate the Claimant’s contract of service. The Claimant does not contend in the said pleading that his services were wrongfully terminated on account of constructive dismissal ELRC CAUSE NO. E1382 OF 2018 5

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from employment or otherwise. Rather, his case relates to: unpaid commission; unfulfilled promises to better his terms of service to match the offer he had received from SAP Africa; and the Respondent’s failure to reimburse the tuition fees he had paid to Strathmore University for his master’s program. 22. Yet, in his (the Claimant’s) further witness statement dated 30th September 2019 and during his oral testimony in court, he sought to introduce a claim for wrongful termination of his contract of service by stating, inter alia, that: the Respondent used the wrong procedure to terminate his contract; he was denied the right to be heard before the contract was terminated; he was not accorded an opportunity to defend himself; the Respondent did not have valid reason to terminate his contract; and that the Respondent wrongfully terminated his contract by frustrating him into resigning from service. Based on this evidence, he asks the court to award him general damages. Both parties were to later pursue the question regarding the lawfulness of termination of the Claimant’s services in their closing submissions. 23. The law on pleadings is now fairly settled. A party is bound by his pleadings. He is not entitled to present evidence to establish a case which is not founded on his pleadings. Any evidence which is at variance with the pleadings on record is ELRC CAUSE NO. E1382 OF 2018 6

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not to be accepted (Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR)). 24. Having regard to the foresaid, it was not open to the Claimant to advance a case for wrongful termination of his contract in his witness statement and during the trial without having pleaded it (the case) in his amended Statement of Claim. As such, the court is not entitled to interrogate the lawfulness of the Respondent’s decision to terminate his contract or indeed to inquire into whether or not to award him damages for wrongful termination of his contract of service. 25. The Claimant prays for reimbursement of the tuition fees which he paid to Strathmore University and for payment of the difference between the salary the Respondent was paying him and the salary he would have earned from SAP Africa had he accepted its job offer. It is his case that after the Respondent learned of the job offer SAP Africa had made to him, it (the Respondent) offered to match the terms offered by SAP Africa in order to retain him in employment. He further contends that the Respondent offered to pay his tuition fees at Strathmore University and to allocate him restricted stock units as a further incentive for his retention. 26. However, he contends that the Respondent reneged on the offer. And hence the prayers that he be paid the amounts he incurred in tuition fees and lost in salary. ELRC CAUSE NO. E1382 OF 2018 7

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27. On its part, the Respondent denies making such an offer to the Claimant. It denies that it was to either improve the Claimant’s terms and conditions of service to match those which were offered to him by SAP Africa or reimburse the tuition fees he paid to Strathmore University as an incentive of retaining him. 28. According to the Respondent, for such representation to be effective, it ought to have been reduced into writing by way of an addendum to the Claimant’s contract of service. It contends that no such addendum was introduced to the contract. 29. The court has considered the contrasting positions expressed by the parties on the subject. The Claimant appears to rely on the email correspondence between him and one of the Respondent’s officers to anchor his claim in this regard. However, a perusal of the emails does not suggest that the Respondent made an unequivocal promise to the Claimant to either improve his terms of service to match those which he had been offered by SAP Africa or to pay his tuition expenses at Strathmore University as an incentive to retain his services. The fact that the Respondent made some payment of the fees does not, of itself, constitute evidence of a commitment by it to reimburse the Claimant what he had incurred towards tuition fees at the aforesaid University in order to retain his services. ELRC CAUSE NO. E1382 OF 2018 8

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30. During trial, the Claimant acknowledged that his appointment to the position of Product Sales Specialist was done in writing. He conceded that the discussions between him and the Respondent’s director regarding improvement of his terms of service, allocation of restricted stock units and reimbursement of his tuition fees were not reduced into writing in the form of an addendum to his contract. He further conceded that the discussions were not followed up with a letter to confirm the alleged agreement between the parties. 31. In law, a bare promise does not result in an enforceable contract. For a promise to be contractually enforceable, it must be backed by reasonable consideration. 32. Speaking to this in the case of Timau Agro Industires Limited v National Oil [2025] KEHC 2547 (KLR), Corporation the learned of Kenya Judge quoted Halsbury’s Laws of England on the subject as follows:“To constitute a valid contract (1) there must be two or more separate and definite parties to the contract; (2) those parties must be in agreement, that is, there must be consensus on specific matters (often referred to in the older authorities as ‘consensus ad idem’); (3) those parties must intend to create legal relations in the sense that the promises of each side are to be enforceable simply because they are contractual promises; (4) the promises of each party must be ELRC CAUSE NO. E1382 OF 2018 9

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supported by consideration or by some other factor which the law considers sufficient. Generally speaking, the law does not enforce a bare promise.” 33. The court is not convinced (based on the evidence before it) that the Respondent made a contractually enforceable promise to the Claimant to better his terms to match those by SAF Africa and to reimburse his tuition fees as an incentive for him not to take up the job offer from SAP Africa. There is no document which explicitly and cogently speaks to the promise. There is no evidence of an unequivocal promise by the Respondent in this respect. 34. Further, the court takes cognizance of the fact that the Respondent, being a body corporate, only speaks through resolutions by its Board of Directors or through its duly constituted attorneys. RW2 stated that the only individual who was authorized by the Respondent to handle matters relating to variation of employees’ contracts was its (the Respondent’s) Vice President. She stated that no other officer, including the Claimant’s supervisor, had such authority. 35. No evidence of a resolution by the Respondent’s Board of Directors or the Respondent’s Vice President sanctioning the changes which the Claimant contends were to be introduced to his terms of service was presented to court. Similarly, there was no board resolution to confirm that the Respondent agreed to shoulder the Claimant’s tuition fees at ELRC CAUSE NO. E1382 OF 2018 10

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Strathmore University as an incentive for him not to take up the job offer by SAP Africa. 36. In their closing submissions, counsel for the Claimant rely on the doctrine of estoppel to argue that the Respondent was bound by the representations which the Claimant’s supervisor made to him to the effect that the Respondent would improve his terms of service as a condition for him not taking up the offer by SAP Africa. However, I do not agree with this contention for various reasons. 37. First, for the principle of estoppel to apply, it must be shown that the representation which the applicant relied on to alter his position to his disadvantage was clear and unambiguous. I do not think that the response by the Claimant’s supervisor to his email dated 12th September 2013 can be said to have been clear and unambiguous. All that the email stated was ‘’Excellent. Good choice, I won’t disappoint.’’ The email does not state that by so stating, the writer was accepting the Claimant’s demands. 38. Second, in order for the doctrine of estoppel to be invoked, it must be demonstrated that the individual who made the representation that is the subject of estoppel had the authority to make the representation. In this case, there is no evidence to demonstrate that the persons who allegedly accepted the Claimant’s demand had the authority of the Respondent to do so. On the contrary, RW2 stated that only ELRC CAUSE NO. E1382 OF 2018 11

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the Respondent’s Vice President is mandated to alter the terms of service for an employee. 39. The foregoing being the case, it cannot be said that the Respondent made a contractually enforceable promise to the Claimant to better his terms of service to match those which he had been offered by SAF Africa or to reimburse his tuition fees as an incentive for his retention in service. As such, the court cannot issue an order to compel Respondent to make good the loss which he allegedly suffered as a result of the alleged refusal to implement the terms of the promise. 40. The Respondent tendered in evidence a tuition reimbursement policy vide its supplementary list and bundle of documents dated 10th July 2024. According to the instrument, employees are allowed, with the approval of their line manager, to claim reimbursement of tuition fees if they meet the criteria set by the Respondent. 41. During trial, the Claimant was shown this statement and he confirmed that refund of tuition fees required the approval of an employee’s line manager. However, he did not tender evidence to demonstrate that his line manager approved reimbursement of the balance of the tuition fees of Ksh. 700,000.00 to anchor his claim for this balance. 42. The Claimant further claims unpaid commission of Ksh. 1,000,000.00. He avers that the Respondent did not give him goal sheets for the year 2015-2016 which were necessary for working out his commission. As such, he contends that he ELRC CAUSE NO. E1382 OF 2018 12

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was underpaid commission for this period. The Claimant further states that he closed two deals involving Nairobi City County and Ministry of ICT Tanzania for which he was not paid commission. 43. When he was cross-examined on the matter, he confirmed that payment of commission was guided by the Respondent’s policies. He further confirmed that commission payment was subject to a deal being closed and revenue therefrom being collected by the Respondent. 44. The Claimant confirmed that he did not have evidence to confirm closure of the deals with Nairobi City County and Ministry of ICT Tanzania in order to support his claim for commission. He further conceded that absent issuance of goal sheets, it would not be possible to compute commission fees using the criteria of a goal sheet. 45. On the other hand, RW1 stated that computation of commission is based on two formulas: by reference to goal sheets; or by reference to 100% target attainment. 46. RW1 stated that the Claimant was issued with a goal sheet for 2015. However, she indicated that he was not issued with a goal sheet for 2016. As such, she stated that the Respondent used the goal sheet method to compute his commission for 2014-2015 and the 100% target attainment formula to compute the 2015-2016 commission. 47. The witness further stated that the Claimant worked for a total of 55 days in the financial year 2015-2016. He thus ELRC CAUSE NO. E1382 OF 2018 13

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stated that his (the Claimant’s) commission was pro-rated to the 55 days. 48. The witness stated that the pro-rated commission due to the Claimant averaged Ksh. 13,175 per day totaling Ksh. 724,462.00 for the 55 days he was on duty for the financial year under review. The witness further stated that the pay slips issued to the Claimant and exhibited at pages 47 to 50 of the Respondent’s trial bundle show that he was paid more than Ksh. 724,462.00 in commissions for the period under review. 49. The witness further stated that the Claimant was paid for the Nairobi City County and Ministry of ICT Tanzania deals once revenues from the deals were collected. It was his case that payments for the two deals were part of the payments which were made to the Claimant between the time he left employment and December 2025. As such, it was his case that he (the Claimant) was paid more than what he was entitled to in commissions for the period under review. 50. Taking into account the pay slips which the Respondent has referred to, it is apparent that the Claimant was paid some commissions for the financial year 2015-2016. It is also apparent that the commissions paid to him were more than the sum of Ksh. 724,462.00 which was due to him for the period under review if the computation by the Respondent is anything to go by. ELRC CAUSE NO. E1382 OF 2018 14

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51. The court notes that besides the Claimant asserting that some commission remains unpaid, he did not table evidence to back this claim. Whilst conceding this fact, he averred that all the evidence on the subject remained with the Respondent. 52. On the other hand, the Respondent gave a cogent formula it used to compute the Claimant’s commission for the period under review at Ksh. 724,462.00. It further demonstrated by way of entries in the Claimant’s pay slips for the period between September 2015 and December 2015 that he was paid more than Ksh. 724,462.00 in commission payment. 53. The Claimant did not offer evidence to controvert the evidence which the Respondent alluded to on the subject. Having regard to this, the court finds that the Claimant has not demonstrated that he was not paid all of his commissions. Determination 54. After considering the evidence on record, the court arrives at the conclusion that the Claimant has not established his claim before the court. 55. As such, the suit is dismissed. 56. Each party to bear own costs of the suit. Dated, signed and delivered on the 24th day of September, 2026 B. O. M. MANANI ELRC CAUSE NO. E1382 OF 2018 15

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JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO. E1382 OF 2018 16

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