1. The application before the court is a Notice of Motion dated 31.08.2021 in which the Applicant seeks an order directing the Respondent to furnish it with a Withholding VAT Certificate for Kshs. 633,185,49 being the amount withheld by the Respondent on 17th October 2019 as Withholding VAT and that in the event of failure to comply, the Applicant be ordered to pay Kshs. 633,185.49 with interest thereon.
2. The application is supported by the affidavit of the Applicant’s director, Gopal Vigjiani, sworn on 31st August 2021. It is opposed by the Respondent through the replying affidavit of its legal counsel, Eric Kivuva, sworn on 25th October 2022. The parties’ advocates made brief oral submissions in support of their respective positions.
3. I take the following view of the matter. The facts leading to this application are not in dispute. This court adopted the Final Award issued by Paul Ngotho dated 18th January 2019 as a judgment of this court on 25th July 2019 and a Decree issued on 14th August 2019. Under the Decree, the Respondent was required to pay the sums found due including VAT thereon. The parties agree that the sums were paid less withholding tax on account of the VAT. The Applicant wishes to be furnished with the VAT Certificate while the Respondent insists on an invoice as a condition for issuing the certificate.
4. I hold that following adoption of the Final Award and entry of judgment, the Respondent was obliged to settle the decretal amount in full. Any issues concerning further documentation including invoices merged into the Final Award and thereafter the Decree. The Decree is final and conclusive on what is to be paid by the Respondent and the Respondent cannot impose conditions for payment. Either it pays the full decretal amount or furnishes the VAT Certificate to support the amount withheld. To impose any further conditions is contrary to the Decree.
5. An arbitral award is final and conclusive and once adopted must be satisfied to the letter. For these reasons, I allow the application dated 31st August 2021 and order the Respondent to provide the VAT Withholding Certificate for Kshs. 633,185.49 within 14 days in default of which the Respondent shall be at liberty to proceed with recovery of the amount outstanding under the decree.
DATED and DELIVERED at NAIROBI this 20th day of DECEMBER 2022
D. S. MAJANJA
JUDGE