1.Before me for determination is the Application dated 5th t July 2023, which seeks the following orders:i.The Honourable Court be pleased to stay the execution of the judgment made in MCELRC Case No. E799 of 2020 by Hon. B.M Cheloti on 29th May 2023 in the Chief Magistrates Court at Milimani, and any resultant Degree or consequential Orders therefrom, pending the inter partes hearing and determination of this Application.ii.The Honourable Court be pleased to stay the execution of the judgment made in MCELRC Case No. E799 of 2020 by Hon. B.M Cheloti on 29th May 2023 in the Chief Magistrates Court at Milimani and any resultant Decree or consequential Orders therefrom, pending the hearing and determination of the Appeal.iii.The costs of this Application be costs in the Appeal.iv.Any other or further Order that this Honourable Court may deem fit and just to grant.
2.The Application is supported by the affidavit of Anne Wanjiru Gichora, the appellant/applicant, sworn on 5th July 2023 in which she reiterated the grounds set out on the face of the Application.
3.The affiant stated that she instituted a claim against the Respondent before the Chief Magistrates court Milimani being CMEL Cause No. E799 of 2020 seeking various reliefs following an unfair termination.
4.After hearing the matter on merit, the trial Court rendered itself on the matter by a judgment entered on the 29th of May 2023. Her claim was dismissed with costs awarded to the Respondent.
5.Being dissatisfied with the judgment she preferred the appeal herein seeking to set aside the entire judgment of the trial court. The appeal is arguable and raises strong and serious grounds. It will be just therefore that the orders sought in the instant application be granted.
6.She contends that if the orders of stay of execution sought herein are not granted, the appeal shall be rendered nugatory and reduced to an academic exercise. She stands to suffer a substantial loss. The application herein was brought timeously without undue delay.
7.In response to the Application the Respondent Filed grounds of opposition dated 2nd August 2023
8.The Respondent avers that there is no subject matter to be preserved by the stay sought whose disposal would render the appeal nugatory.
9.The respondent stated that the appellant has not demonstrated the irreparable loss she is likely to suffer if the stay is not granted.
10.The Respondent asserted that it is a financially sound entity that would repay the costs of Kshs 229,380 awarded to the Respondent if the appeal succeeded.
11.By the time the court was retiring to write the ruling none of the parties had filed submissions
Analysis and Determination
12.Undoubtedly, the Appellant/applicant’s suit before the trial was dismissed. The application herein is for a stay of execution in respect of a negative order. It is trite that negative orders cannot be stayed. In the case of Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme Vs- Milimo, Muthomi & Co. Advocates & 2 others  KECA 491, the Court of Appeal observed;
13.I am impelled to conclude that considering the nature of the judgment that the Appellant has assailed by way of the appeal herein, there is nothing for this Court to stay. Consequently, I find the Appellant’s Notice of Motion Application wanting in merit and it is hereby dismissed.