Tradingin Unwrought Precious Metals Act Cap 309 - as Plain Text by MWakili

LAWS OF KENYA TRADING IN UNWROUGHT PRECIOUS METALS ACT CHAPTER 309 Revised Edition 2012 [1987] Published by the National Council for Law Reporting with the Authority of the Attorney-General www.kenyalaw.org [Rev.

2012] CAP.

309 Trading in Unwrought Precious Metals CHAPTER 309 TRADING IN UNWROUGHT PRECIOUS METALS ACT ARRANGEMENT OF SECTIONS Section 1.

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 3 [Issue 1] [Rev.

2012] CAP.

309 Trading in Unwrought Precious Metals CHAPTER 309 TRADING IN UNWROUGHT PRECIOUS METALS ACT [Date of commencement: 24th April, 1933.] An Act of Parliament to regulate trading in unwrought precious metals [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 title This Act may be cited as the Trading in Unwrought Precious Metals Act.

2.

Interpretation In this Act, unless the context otherwise requires banker includes a manager or cashier or other officer acting in that capacity, of a company engaged in the business of banking within Kenya and complying with the provisions of the Banking Act, (Cap.

488); Commissioner means the Commissioner of Mines and Geology appointed under the Mining Act (Cap.306) and any public officer authorized by the 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 the arts, and includes amalgam, slimes, slags, gold-bearing concentrates, pots, battery chips, sweepings from reduction works and scrapings and by- products of unrefined precious metal and precious metal which has been smelted into the 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 metal unless (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 or agent acting on his behalf from land held by him under a mining title or exclusive prospecting licence; or 5 [Issue 1] CAP.

309 [Rev.

2012] Trading in Unwrought Precious Metals (d) he is in possession of a certificate issued by the Commissioner authorizing him to dispose of the unwrought precious metal: Provided that a certificate shall not be required in respect of unwrought precious metal proved to the satisfaction of the Commissioner of Customs and Excise to have originated elsewhere than in Kenya and passing through Kenya in transit for exportation.

(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 him under a mining title or exclusive prospecting licence shall transport that metal (a) beyond the boundaries of the land, unless he is in possession of a permit issued to him by the Commissioner or a person authorized by the Commissioner in that behalf or by an administrative officer or a police officer not below the rank of Inspector authorizing him to transport the metal to a bank; or (b) otherwise than in accordance with the terms and conditions of the permit.

(2) A permit issued under subsection (1) shall, except in far as it provides otherwise, be valid in respect of one journey only, and shall remain valid for such period as maybe specified therein, or, if no period is so specified, for the period of seven days inclusive of the day of issue, and every such permit shall state the name and address of the Bank to which such metal is being transported and the route 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 Commissioner authorizing him to be in possession of that metal; or (c) he is able to satisfy the magistrate that he came into possession of the metal in a lawful manner.

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

[Act No.

53 of 1954, s.

4.] [Issue 1] 6 [Rev.

2012] CAP.

309 Trading in Unwrought Precious Metals 6.

Unwrought gold may be imported in certain cases Notwithstanding anything in this Act, any person may, if he signs a declaration in Form 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 and forty 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 he thinks 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 renewal thereof for such time as the court which passes sentence may direct.

9.

Prohibition of dealing in unwrought precious metal at night and on Sundays, etc.

(1) No person shall buy, sell, deal in or receive by way of barter, pledge or otherwise, either as principal or agent, any unwrought precious metal between sunset and sunrise, or on a Sunday or a public holiday, or at any other place than his 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 renewal thereof for such time as the court which passes sentence may direct.

10.

Burden of proof of being licensed Whenever, in proceedings against a person under this Act or under any regulations made thereunder, it is necessary to ascertain whether he is a licensed dealer or is otherwise authorized to buy, sell, deal in, receive or dispose 7 [Issue 1] CAP.

309 [Rev.

2012] Trading in Unwrought Precious Metals of unwrought precious metal, the burden of proving that he was a licensed dealer or 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 correct register in English of all unwrought precious metal deposited with, or received or despatched, or otherwise disposed of by him, and shall enter or cause to be entered in 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 precious metal 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 the prescribed manner shall be guilty of an offence and liable to a fine not exceeding one 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 months of January, April, July and October of every year, transmit or deliver to the Commissioner a true copy of the register in duplicate for the preceding three months, together with a statutory declaration of the correctness thereof, and shall also produce and exhibit the register to a police officer of or above the rank of Inspector whenever required in writing by the officer, and in default of compliance with any requirement of this subsection he shall be guilty of an offence and liable to the penalties mentioned in subsection (2).

[Act No.

15 of 1961, Sch.] 12.

Prohibition of payment of debts or wages in unwrought precious metal A 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 service rendered or to be rendered to him or to another person, shall be guilty of an offence and liable to a fine not exceeding two thousand shillings or to imprisonment for a period not exceeding three months or to both.

13.

Maliciously placing unwrought precious metal on premises with intent No person shall maliciously place unwrought precious metal in the possession of or on the premises of another person, with intent that the other person shall be convicted under any provision of this Act or under any regulations made thereunder.

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 granted by the Commissioner, that all royalties thereon have been paid or secured to the satisfaction of the Commissioner or that no royalties are payable.

[Issue 1] 8 [Rev.

2012] CAP.

309 Trading in Unwrought Precious Metals (2) No unwrought precious metal shall be carried coastwise in Kenya unless particulars thereof have been previously declared to the Commissioner of Customs and 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 the Commissioner of Customs and Excise, and obtains a certificate substantially in Form 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 elsewhere and passing through Kenya in transit for exportation.

[Act No.

15 of 1961, Sch.] 15.

Arrest without warrant A 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 the person 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 of this Act or of any regulations made thereunder has been committed is concealed in any place may issue a warrant authorizing any police officer with his assistants at any time within one month from the date of the warrant to enter and search that place 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 authority of such a warrant shall, as soon as possible, be brought before a magistrate to be dealt 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 metal bought, 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 who pays a royalty on unwrought precious metal may recover or retain the amount from the person on whose behalf he sold or exported the unwrought precious metal, or from whom he received the unwrought precious metal.

18.

Punishment for offences and disposal of unwrought precious metal on conviction A person who contravenes a provision of this Act for the contravention whereof no penalty is prescribed shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding two years, or to both, and on the second or any subsequent conviction either to that fine or to imprisonment for a term not exceeding five years, or to 9 [Issue 1] CAP.

309 [Rev.

2012] Trading in Unwrought Precious Metals both, and the court may declare that all or any part of any unwrought precious metal with respect to which the offence was committed shall be forfeited to the Government.

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 Schedule in one issue of the Gazette.

(2) If within three months from the date of the Gazette in which the advertisement appears any person proves to the satisfaction of the court a title to the forfeited unwrought precious metal or any part thereof, and that he was not concerned 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 court considers just, be delivered to that person.

20.

Trial of offences All charges for offences under this Act or under any regulations made thereunder may be heard and determined by a magistrate.

21.

Regulations The 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 conviction for an offence under this Act or under any regulations made thereunder may, at the discretion and upon the written authority of the Commissioner of Police, be paid 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 unwrought precious metal which the court convicting that person may have declared to be forfeited under section 18.

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

[Act No.

10 of 1952, s.

3, L.N.

649/1963, Act No 21 of 1966, Sch.

SCHEDULE FORM I (s.

7) [L.N.

142/1963.] LICENCE TO TRADE IN UNWROUGHT PRECIOUS METAL No.

.

Licence is granted to [name and address of licensee] for [describe premises].

This licence commences on [date] and expires on the following 31st December.

[Issue 1] 10 [Rev.

2012] CAP.

309 Trading in Unwrought Precious Metals SCHEDULEcontinued Fee paid: Dated the ., 20.

.

Commissioner of Mines and Geology FORM II (s.

14) COMMISSIONER OF MINES AND GEOLOGY No.

.

It is certified that all royalties on [number of packages] of unwrought precious metal [state whether gold, silver or other precious metal] deposited at [place] belonging to [name and address of owner] and marked [state marks] and sealed with the seal of the Commissioner of Mines and Geology have been paid or secured to the satisfaction of the Commissioner of Mines and Geology.

Dated the ., 20.

.

Commissioner of Mines and Geology FORM III (ss.

6 and 14) DECLARATION ON IMPORTATION I, [name and address], hereby solemnly and sincerely declare as follows: 1.

I am in possession of and desire to import [weight and description] of unwrought precious metal [state whether gold, silver or other precious metal] and no more.

2.

The said unwrought precious metal is my own property [or as may be].

3.

I obtained the said unwrought precious metal from [state place, person and date].

And I make this declaration conscientiously believing the same to be true.

Declared, etc.

.

Commissioner of Customs and Excise 11 [Issue 1] CAP.

309 [Rev.

2012] Trading in Unwrought Precious Metals SCHEDULEcontinued FORM IV (ss.

6 and 14) CERTIFICATE OF IMPORTATION No.

.

It is certified that [name and address of importer] has imported [weight] of unwrought precious metal [state whether gold silver or other unwrought precious metal] in the form of [e.g., dust or as the case may be], the said [name] having declared that the said unwrought precious metal is his own property [or as may be] and that he obtained the said unwrought precious metal [as in declaration].

Dated the ., 20.

.

Commissioner of Customs and Excise FORM V (s.

19) NOTICE FORFEITURE OF UNWROUGHT PRECIOUS METAL In the Magistrates Court at.

Notice is given that [weight and description of unwrought precious metal] was on the [date] seized at [place], and has since been declared to be forfeited by reason of [state grounds, e.g., it having been unlawfully sold by, etc.].

Any person claiming any title to the said unwrought precious metal must prove his title to the satisfaction of the Court within three months from the date of this notice.

If no such claim is proved, the said unwrought precious metal will become the absolute property of the Government, and be disposed of accordingly.

Dated the ., 20.

.

Magistrate [Issue 1] 12.