trading in unwrought precious metals act · 2018-05-21 · trading in unwrought precious metals...

Trading In Unwrought Precious MetalsCAP. 309

LAWS OF KENYA

TRADING IN UNWROUGHT PRECIOUS METALS ACT

CHAPTER 309

Revised Edition 2012 [1987]

Published by the National Council for Law Reportingwith the Authority of the Attorney-General

www.kenyalaw.org

Trading In Unwrought Precious MetalsCAP. 309

[Rev. 2012]Trading In Unwrought Precious Metals

CAP. 309

T12-3 [Issue 1]

CHAPTER 309

TRADING IN UNWROUGHT PRECIOUS METALS ACTARRANGEMENT OF SECTIONS

Section1. Short title.2. Interpretation.3. Unlawful dealing in unwrought precious metal.4. Prohibition on transport of unwrought precious metal.5. Unlawful possession, and finding, of unwrought precious metal.6. Unwrought gold may be imported in certain cases.7. Issue of licences to deal in unwrought precious metal.8. Contravention of conditions of licence.9. Prohibition of dealing in unwrought precious metal at night and on Sundays, etc.

10. Burden of proof of being licensed.11. Register of transactions to be kept.12. Prohibition of payment of debts or wages in unwrought precious metal.13. Maliciously placing unwrought precious metal on premises with intent.14. Restrictions on export and import of unwrought precious metal.15. Arrest without warrant.16. Search of premises.17. Payment of royalties by licensed dealers.18. Punishment for offences and disposal of unwrought precious metal on conviction.19. Claims to forfeited unwrought precious metal.20. Trial of offences.21. Regulations.22. Rewards.

SCHEDULE

CAP. 309Trading In Unwrought Precious Metals

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[Issue 1] T12-3


CAP. 309

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CHAPTER 309TRADING IN UNWROUGHT PRECIOUS METALS ACT

[Date of commencement: 24th April, 1933.]

An Act of Parliament to regulate trading in unwrought precious metals[Act No. 2 of 1933, Cap.172 (1948), Act No. 10 of 1952, Act No. 53 of 1954, L.N. 342/1956,L.N.343/1956, L.N.172/1960, L.N.173/1960, Act No. 15 of 1961, L.N.142/1963, L.N. 649/1963,

L.N. 2/1964, Act No. 21 of 1966, Act No. 18 of 1986, Act No. 13 of 1988.]

1. Short titleThis Act may be cited as the Trading in Unwrought Precious Metals Act.

2. InterpretationIn this Act, unless the context otherwise requires—

“banker” includes a manager or cashier or other officer acting in thatcapacity, of a company engaged in the business of banking within Kenya andcomplying with the provisions of the Banking Act, (Cap. 488);

“Commissioner” means the Commissioner of Mines and Geologyappointed under the Mining Act (Cap.306) and any public officer authorized bythe Commissioner to act on his behalf;

“licence” means a licence described in section 7;“licensed dealer” means the holder of a licence;“magistrate” means a magistrate of a subordinate court of the first or

second class;“precious metal” means gold, silver or metal of the platinoid group in the

unmanufactured state;“unwrought precious metal” means precious metal in any form whatever,

which is not manufactured or made up into an article of industry or of thearts, and includes amalgam, slimes, slags, gold-bearing concentrates, pots,battery chips, sweepings from reduction works and scrapings and by-productsof unrefined precious metal and precious metal which has been smelted intothe form of bullion but does not include ore in situ.

[Act No.10 of 1952, s. 2.]

3. Unlawful dealing in unwrought precious metal(1) No person shall buy, sell, deal in, receive or dispose of by way of barter,

pledge or otherwise, either as principal or agent, any unwrought precious metalunless—

(a) he is a licensed dealer; or

(b) deleted by Act No. 13 of 1988, Sch.;

(c) the unwrought precious metal has been won by him or his servant oragent acting on his behalf from land held by him under a mining titleor exclusive prospecting licence; or


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(d) he is in possession of a certificate issued by the Commissionerauthorizing him to dispose of the unwrought precious metal:

Provided that a certificate shall not be required in respect of unwrought preciousmetal proved to the satisfaction of the Commissioner of Customs and Excise tohave originated elsewhere than in Kenya and passing through Kenya in transit forexportation.

(2) Deleted by Act No. 13 of 1988, Sch.(3) No person shall buy unwrought precious metal without having satisfied

himself that the vendor thereof is lawfully entitled to sell it.[Act No. 53 of 1954, s. 2, Act No. 13 of 1988, Sch.]

4. Prohibition on transport of unwrought precious metal(1) No person who is in possession of unwrought precious metal which has

been won by him or his servant or agent acting on his behalf from land held by himunder a mining title or exclusive prospecting licence shall transport that metal—

(a) beyond the boundaries of the land, unless he is in possession of apermit issued to him by the Commissioner or a person authorizedby the Commissioner in that behalf or by an administrative officeror a police officer not below the rank of Inspector authorizing him totransport the metal to a bank; or

(b) otherwise than in accordance with the terms and conditions of thepermit.

(2) A permit issued under subsection (1) shall, except in far as it providesotherwise, be valid in respect of one journey only, and shall remain valid for suchperiod as maybe specified therein, or, if no period is so specified, for the periodof seven days inclusive of the day of issue, and every such permit shall state thename and address of the Bank to which such metal is being transported and theroute to be followed in such transportation.

[Act No. 53 of 1954, s. 3.]

5. Unlawful possession, and finding, of unwrought precious metal(1) No person shall have in his possession any unwrought precious metal

unless—(a) he is a person excepted under subsection (1) of section 3; or

(b) he is in possession of a certificate issued by the Commissionerauthorizing him to be in possession of that metal; or

(c) he is able to satisfy the magistrate that he came into possession ofthe metal in a lawful manner.

(2) Any unwrought precious metal found without an apparent owner may beseized by any police officer or the Commissioner, and shall as soon as possible betaken before a magistrate, who, if satisfied that the owner cannot be found, shalldeclare it to be forfeited.

[Act No. 53 of 1954, s. 4.]


CAP. 309

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Notwithstanding anything in this Act, any person may, if he signs a declaration inForm III in the Schedule, and obtains a certificate substantially in Form IV therein,import such quantity of unwrought gold of a fineness greater than nine hundred andforty per thousand in weight as may be specified in the declaration, and possess,sell, deal in or otherwise dispose of the gold to a banker or a licensed dealer.

7. Issue of licences to deal in unwrought precious metal(1) The Commissioner may issue a licence, which shall be substantially in Form

I in the Schedule, and the licence shall expire on the following 31st December.(2) The fee for a licence shall be ten thousand shillings:(3) The Commissioner may, without assigning a reason, refuse to issue a

licence.(4) The Commissioner may revoke a licence—

(a) upon the conviction of the holder thereof for an offence under this Act;or

(b) for any other reason, with the approval of the Minister.

(5) On revocation the Commissioner may refund such part of the fee as hethinks just.

[L.N. 343/1956, L.N.173/I960, Act No. 18 of 1986, Sch.]

8. Contravention of conditions of licence(1) No licensed dealer shall deal in unwrought precious metal in a manner

which is not specially authorized by the terms of his licence.(2) Contravention of this section shall, in addition to the prescribed penalties,

render a licensed dealer liable to the forfeiture of his licence and any right of renewalthereof for such time as the court which passes sentence may direct.

9. Prohibition of dealing in unwrought precious metal at night and onSundays, etc.

(1) No person shall buy, sell, deal in or receive by way of barter, pledge orotherwise, either as principal or agent, any unwrought precious metal betweensunset and sunrise, or on a Sunday or a public holiday, or at any other place thanhis usual place of business.

(2) Contravention of this section shall, in addition to the prescribed penalties,render a licensed dealer liable to the forfeiture of his licence and any right of renewalthereof for such time as the court which passes sentence may direct.

10. Burden of proof of being licensedWhenever, in proceedings against a person under this Act or under any

regulations made thereunder, it is necessary to ascertain whether he is a licenseddealer or is otherwise authorized to buy, sell, deal in, receive or dispose


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of unwrought precious metal, the burden of proving that he was a licensed dealeror was otherwise so authorized shall lie upon that person.

11. Register of transactions to be kept(1) A licensed dealer, banker and a person who receives or deposits for safe

keeping or despatch unwrought precious metal, shall keep a true and correctregister in English of all unwrought precious metal deposited with, or received ordespatched, or otherwise disposed of by him, and shall enter or cause to be enteredin the register within twenty-four hours after every transaction—

(a) the date of the transaction;

(b) the names of the parties to the transaction;

(c) the nature and weight of the material and the weight of the preciousmetal the subject of the transaction; and

(d) the price (if any) received or paid.

(2) A person required by this section to keep a register who fails to keep it in theprescribed manner shall be guilty of an offence and liable to a fine not exceedingone thousand shillings or to imprisonment for a period not exceeding three months.

(3) A person required by this section to keep a register shall, in the monthsof January, April, July and October of every year, transmit or deliver to theCommissioner a true copy of the register in duplicate for the preceding threemonths, together with a statutory declaration of the correctness thereof, and shallalso produce and exhibit the register to a police officer of or above the rank ofInspector whenever required in writing by the officer, and in default of compliancewith any requirement of this subsection he shall be guilty of an offence and liableto the penalties mentioned in subsection (2).

[Act No. 15 of 1961, Sch.]

12. Prohibition of payment of debts or wages in unwrought precious metalA person who delivers or causes to be delivered unwrought precious metal in

payment of a debt due from him or another person, or in consideration of a servicerendered or to be rendered to him or to another person, shall be guilty of an offenceand liable to a fine not exceeding two thousand shillings or to imprisonment for aperiod not exceeding three months or to both.

13. Maliciously placing unwrought precious metal on premises with intentNo person shall maliciously place unwrought precious metal in the possession

of or on the premises of another person, with intent that the other person shallbe convicted under any provision of this Act or under any regulations madethereunder.

14. Restrictions on export and import of unwrought precious metal(1) No person shall export unwrought precious metal, whether by land, sea or

air, unless he holds a certificate, substantially in Form II in the Schedule grantedby the Commissioner, that all royalties thereon have been paid or secured to thesatisfaction of the Commissioner or that no royalties are payable.


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(2) No unwrought precious metal shall be carried coastwise in Kenya unlessparticulars thereof have been previously declared to the Commissioner of Customsand Excise.

(3) No person shall import unwrought precious metal, whether by land,sea or air, unless he makes a declaration substantially in Form III before theCommissioner of Customs and Excise, and obtains a certificate substantially inForm IV in the Schedule; and before the unwrought precious metal is re-exported,the certificate shall be surrendered to the Commissioner of Customs and Excise,who shall send it to the Commissioner.

(4) This section shall not apply to unwrought precious metal mined elsewhereand passing through Kenya in transit for exportation.

[Act No. 15 of 1961, Sch.]

15. Arrest without warrantA police officer may arrest without warrant a person who he has reasonable

grounds to believe has committed an offence under this Act, and shall take theperson before a magistrate as soon as possible.

16. Search of premises(1) A magistrate who has reason to suspect that unwrought precious metal with

respect to which an offence under or in contravention of any of the provisions ofthis Act or of any regulations made thereunder has been committed is concealedin any place may issue a warrant authorizing any police officer with his assistantsat any time within one month from the date of the warrant to enter and search thatplace and all buildings and things therein, using such force as may be necessary,and to seize any unwrought precious metal and arrest any person found therein.

(2) A person arrested and unwrought precious metal seized under the authorityof such a warrant shall, as soon as possible, be brought before a magistrate to bedealt with according to law.

17. Payment of royalties by licensed dealers(1) A licensed dealer and a banker shall be liable for the due payment to

Government of all royalties which may be due on any unwrought precious metalbought, sold, received or exported by him, and, if so required by the Commissioner,shall give security for the due payment of all royalties.

(2) Subject to any agreement to the contrary, a licensed dealer or a banker whopays a royalty on unwrought precious metal may recover or retain the amount fromthe person on whose behalf he sold or exported the unwrought precious metal, orfrom whom he received the unwrought precious metal.

18. Punishment for offences and disposal of unwrought precious metal onconviction

A person who contravenes a provision of this Act for the contravention whereofno penalty is prescribed shall be guilty of an offence and liable to a fine notexceeding twenty thousand shillings or to imprisonment for a term not exceedingtwo years, or to both, and on the second or any subsequent conviction either tothat fine or to imprisonment for a term not exceeding five years, or to


[Rev. 2012]

[Issue 1] T12-10

both, and the court may declare that all or any part of any unwrought preciousmetal with respect to which the offence was committed shall be forfeited to theGovernment.

19. Claims to forfeited unwrought precious metal(1) The magistrate who under this Act declares any unwrought precious metal

to be forfeited shall advertise the forfeiture substantially in Form V in the Schedulein one issue of the Gazette.

(2) If within three months from the date of the Gazette in which theadvertisement appears any person proves to the satisfaction of the court a title tothe forfeited unwrought precious metal or any part thereof, and that he was notconcerned in any offence for which the unwrought precious metal was forfeited,the court shall order that the unwrought precious metal, or such part as the courtconsiders just, be delivered to that person.

20. Trial of offencesAll charges for offences under this Act or under any regulations made

thereunder may be heard and determined by a magistrate.

21. RegulationsThe Minister may from time to time make regulations generally for carrying into

effect the provisions of this Act.[L.N. 342/1956, L.N. 172/1960.]

22. Rewards(1) A person, other than a person in the service of the Government, who gives

to the police information leading to another person being prosecuted to convictionfor an offence under this Act or under any regulations made thereunder may, atthe discretion and upon the written authority of the Commissioner of Police, bepaid out of moneys provided by Parliament a monetary reward of such amount,not exceeding one-third of the proceeds derived from the sale of any unwroughtprecious metal which the court convicting that person may have declared to beforfeited under section 18.

(2) Nothing in this section shall confer on any person a right in law to a monetaryreward.

[Act No. 10 of 1952, s. 3, L.N. 649/1963, Act No 21 of 1966, Sch.]

SCHEDULE


CAP. 309

T12-11 [Issue 1]


[Rev. 2012]

[Issue 1] T12-12


CAP. 309

T12-12 [Issue 1]

trading in unwrought precious metals act · 2018-05-21 · trading in unwrought precious metals...

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