Director of Public Prosecutions Keriako Tobiko yesterday told the Supreme Court not all capital offenders deserve legal representation.
A capital offender is somebody whose punishment is death by hanging, poisoning or electrocution.
In Kenya, a capital offence is punishable by hanging and has not been executed since the attempted coup of 1982.
The DPP, who was represented by state counsel Vincent Monda, said legal aid for such offenders arises when circumstantial evidence is needed.
Circumstantial evidence in a criminal or civil case is when direct evidence is lacking. Making submissions before the judges David Maraga, Philomena Mwilu, Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola, the DPP said the decision of a special court in Malindi against three suspects should be upheld.
The decision by High Court judges Christine Meoli and Oscar Angote of the Environment and Lands Division, delivered on March 7, 2014, handed a death sentence to Karisa Chengo, Jefferson Kenga and Kitsao Ngati, who were unrepresented.
They confirmed a robbery with violence conviction made by a lower court.
The judges ordered that all the appeal cases, which had been heard by the special courts, be taken back to the High Court for retrial.
The court, which was set up by former Chief Justice Willy Mutunga, was to clear a backlog of cases.
But after the sentencing, the three appealed the decision at the Court of Appeal sitting in Malindi, in which judges Hannah Okwengu, Milton Makhandia and Fatuma Sichale ruled that the proceedings of the special courts were invalid.
They said the courts were not properly constituted as Angote was employed to handle cases in the Environment division.
The judgement meant that all criminal cases decided by Land and Environment division judges stood nullified, unless the Supreme Court overturns the judgement.
The judgement affects more than 2,000 cases decided since September 2013, when the courts were set up by Mutunga. Munda said the CJ properly constituted the courts.
“The courts helped to clear a backlog of cases in various parts of the country,” he said.
But lawyer Ledama ole Kina, who is defending the three, said when Parliament was coming up with laws governing the judiciary, it recommended that judges be recruited based on their specialty.