1.The Notice of Motion dated February 13, 2023 brought under Certificate of Urgency pursuant to rule 5(2) (b) of the Court of Appeal Rules, 2010 and supported by the affidavit of even date sworn by Lucy Serem, seeks orders to stay execution by the respondents, and/or injunctive orders against the respondents from exercising any disciplinary process as against the applicant on the basis of the judgment of the Employment and Labour Relations Court, pending the hearing and determination of the application and the intended appeal.
2.In urging us to find merit in the application, the applicant submits that the appeal is arguable as some of the grounds of appeal include claims that despite being subjected to a flawed disciplinary process fraught with unfair labour practices contrary to the 1st respondent’s Human Resource Policy and Procedural Manual, the trial court nonetheless gave a nod to the process; and that the trial court erroneously held that there is an element of public interest in carrying out a disciplinary process even if it violates the fundamental right of the employee to due process.
3.It is the applicant’s contention that the appeal raises issues that have reasonable chances of success, and that the intended appeal will be rendered nugatory as an unlawful disciplinary process will be allowed to proceed unhindered.Opposing the application, the respondent, through the replying affidavit dated March 3, 2023, and sworn by Carolyne Sein, argues that the application is moot as the applicant, having failed to respond to notices sent to her through various mediums, did not attend the disciplinary proceedings which were conducted ex-parte, and the result was her dismissal from employment, and therefore there is nothing that would be preserved by the orders sought; and that there is no substantive appeal on record as the applicant has failed to comply with certain unspecified procedural rules.
4.The respondent argued further, that it is a settled practice of the courts not to interfere with internal disciplinary proceedings of an organization, and, in circumstances where they do, it is entirely to ensure that proper procedure is applied, and not cease the proceedings on their own findings of the conduct of an employee, which is not the situation here; and that the orders would militate against public interest as the applicant will continue enjoying stay orders without making an attempt to respond to allegations against her at the relevant first port of call, whist drawing a salary, and being absent from work for over a year.
5.In considering whether the applicant has satisfied the requirements necessary for granting an order for stay of execution, we are alive to pronouncements by the Supreme Court of Kenya in Deynes Muriithi & 4 others v LSK & another  eKLR that rule 5(2) (b) of the Court of Appeal Rules,applications arise at an interlocutory stage, and the orders issued thereunder are for the purpose of protecting the subject matter of an appeal, the Court of Appeal having yet to finally determine the appeal.In the case of Teachers Service Commission v Kenya National Union of Teachers & 3 others,  eKLR, the court stated:This court has set out the parameters to be met for an order of stay to be granted in an application under rule 5(2) (b) of the Court of Appeal Rules. In the case of Alferd Mincha Ndubi v Standard Limited  eKLR, this court quoted with approval the case of Ishmael Kangunyi Thande v Housing Finance Company of Kenya Limited  eKLR that to succeed in an application in rule 5(2) (b) of the Court of Appeal Rules, the applicant has to establish existence of an arguable appeal; and that, in the event that the appeal succeeds, it is likely to be rendered nugatory if the injunction is not granted.
7.In considering whether the applicant has demonstrated that she has an arguable appeal, we note that in the case of Wasike v Swala  KLR 591, this court held that an arguable appeal is not one that would necessarily succeed but one that merits consideration by the court.
10.On the issue of an arguable appeal, we take note that the applicant did not even subject herself to the disciplinary process as to find a footing to challenge the same. We further note that the judgment sought to be stayed merely dismissed the petition, and did not restrain any action nor order anything to be done. We are unable to find any arguable issue to warrant issuance of the orders sought, and hold that there is nothing to stay.
11.On the second limb regarding the appeal being rendered nugatory, this court has held in the case of Reliance Bank Limited v Norlake Investment Limited 1 EA 227 that the factors which render an appeal nugatory are to be considered within the circumstances of each case and in so doing the Court is bound to consider the conflicting claims of both sides. (see also Oraro & Rachier Advocates v Co-operative Bank of Kenya  LLR 1118
13.This court has on several occasions stated that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, will be reversible or if not reversible, whether damages will reasonably compensate the aggrieved party.
14.Whereas we concur with the trial court’s findings that were the alleged flawed process be allowed to continue, the applicant has recourse through the appeal process to this Court, we must, however, point out that in the instant case, the applicant’s employment has already been terminated, so her fear of a flawed process being carried out has already bolted from the stable, and really there is nothing to stay. For good measure, our considered view is that if the appeal is determined in the applicant’s favour, then she can be compensated by way of damages in back salary, allowances - all these are monetary sums which can be computed and are compensable by an award of damages. In any event, the applicant has not shown that the 1st respondent is unable to refund/compensate her should the appeal succeed.
15.The upshot is that the applicant having failed to establish both limbs to satisfy the requirement under rule 5(2) (b) of this Court’s Rules, we find that the notice of motion dated February 13, 2023 lacks merit and the same is hereby dismissed with costs to the respondent.