Onyango Okelo v. R. Crim. App. 332-A-69; 10/2/70; Platt J.

Onyango Okelo v. R. Crim. App. 332-A-69; 10/2/70; Platt J.

The appellant appealed against his conviction of being found in unlawful possession of gemstone contrary to section 3 of the Gemstones Industry (Development and Protection) Act No. 11 of 1967. He had pleaded guilty, and the facts were that he had been found with one piece of smoky quartz of no commercial value. The learned Magistrate nevertheless sentenced him to imprisonment for nine months, which the appellant claimed was too harsh.

            Held: “It seems to me to be unnecessarily harsh for the appellant to have been sentenced to nine months’ imprisonment for his possession of one piece of a relatively minor gemstone which had no commercial value. No doubt, the aim is to stamp out illicit traffic in gemstones; but hat objective can well be attained without undue harshness. As I have said on earlier occasions, there may be some justification for imposing imprisonment in the case of gemstones which are also “previous stones”, but the same cannot be said of tones which are only the “semi-‘ precious”  class, which in any event have no value. As the appellant pointed out the Revenue has lost nothing. In cases of this nature, it would be well to consider imposing a fine at the most. A person such as this appellant is hardly likely to be one of the illicit dealers in gems against whom the act is primarily directed. In the circumstances, as the appellant had already served some part of the sentence, the only course open was to reduce his punishment to such term of imprisonment as would result in this immediate release.”