CHEDA AJ: The accused was charged with contravening section 368 of the Mines
and Minerals Act Chapter 21; that is, “prospecting for gold without a licence
or permit”. He pleaded guilty.
The accused was arrested at a compound by detectives who were acting on
information. The facts say the detectives saw the accused person drying
the gold ore on a fire and supplying his colleague the ore in the mortor.
He failed to produce documents which authorized him to prospect for gold.
20 kilogrammes of gold ore was recovered.
He was asked for special circumstances and he replied that
he wanted to raise money for his school fees as he is doing form 3. He is
an orphan and stays with his grandmother.
The court then recorded that what he said was mitigation and not special
circumstances.
The court sentenced him to 2 years imprisonment. The accused is 17 years
old. The court did not enquire where the ore came from, whether it
belonged to him or his colleague. The court did not enquire what the
relationship was with his colleague. It is not established if the
colleague was an adult or another juvenile. Nothing is said about the
colleague and the other persons who were pounding the gold ore.
The accused being a juvenile I am concerned about the extent of his involvement
in the activity that was observed by the detectives. The accused could
have been simply assisting someone in order to also benefit.
The section which provides the penalty for this offence is silent on the nature
of special circumstances. There is nothing to rule out any special circumstances
where a juvenile might be acting with, or under the control or influence of an
adult person.
I am persuaded by the above consideration that the juvenile should have been
given the benefit of the doubt on the issue of special circumstances, and the
court should have found that there were special circumstances because of the
above and his age.
The accused was sentenced on 10 August 2012. He has now served almost 7
months imprisonment.
In my view, the term he has served is enough. The sentence imposed by the
magistrate is set aside. In its place I substitute a sentence of 7 months
imprisonment. The accused has already served that sentence and should now
be released.
The Registrar is directed to issue a warrant of his liberation from prison.
Kamocha J ………………………………………………………I agree
